The Queen v Bin Af If - [2009] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND
CA128/2009
CA129/2009
[2009] NZCA 290
THE QUEEN
v
MOHAMMED KAHLID BIN AF IF
FAISAL BIN AF IF
Hearing:29 June 2009

Court:Hammond, Simon France and Lang JJ
Counsel:P G Mabey QC for Appellants

T Epati for Crown

Judgment:8 July 2009 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Lang J)
Introduction
[1]       Mohammed Bin Af If and his twin brother Faisal Bin Af If pleaded guilty in the District Court to charges of cultivating cannabis, possession of equipment for the purpose of cultivating cannabis, possession of cannabis for the purposes of selling it and selling cannabis. Faisal Bin Af If also pleaded guilty to one charge of receiving stolen property, namely a motor vehicle.
[2]       On 30 January 2009 His Honour Judge Spear sentenced both appellants to an effective term of three years and four months imprisonment on the cannabis-related charges. He sentenced Faisal Bin Af If to a further cumulative term of six months imprisonment on a charge of receiving the stolen motor vehicle. In addition, the Judge ordered each appellant to pay reparation in the sum of $2,065.26. This represented the cost of repairing damage that the appellants had caused to two residential properties in which they had conducted separate cannabis growing operations.
[3]       The appellants appeal to this Court on the basis that the sentences that the Judge imposed were manifestly excessive.
Background
[4]       The charges against the appellants arose as a result of searches that the police carried out of two residential properties in Hamilton on 13 and 14 September 2007. The results of those searches were described in an undisputed summary of facts that the Judge relied upon in sentencing the appellants.
19 Pryce Place
[5]       The police went to 19 Pryce Place, Hamilton on 13 September 2007. Faisal Bin Af If came to the door of the property and stepped outside, locking it behind him. As he stepped outside, the police detected an extremely strong smell of cannabis emanating from the house. As a result, they exercised their powers under s 18(2) of the Misuse of Drugs Act 1975 to search the property.
[6]       When the police went inside the house they found that it had no furnishings at all. The windows of the property had been blacked out and covered by curtains. Inside the house they found what the summary described as a sophisticated cannabis growing operation.
[7]       This included growing lights, fans, power transformers, lighting control units, timers and a large carbon filter. Three of the bedrooms had been set up as growing rooms. The walls of these rooms were lined with polythene and heat lamps were suspended from the ceiling. A total of 38 mature cannabis plants were found growing in the growing rooms. These had reached a height of approximately 1.5 metres.
[8]       The police also found dried cannabis having a total weight of 1.9678 kilograms in the house, together with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Bin Af If

Details

AGLC: The Queen v Bin Af If [2009] NZCA 290
Case: [2009] NZCA 290
Decision Date: 8 July 2009

CaseChat Overview and Summary

Mohammed Bin Af If and Faisal Bin Af If were sentenced by Judge Spear in the District Court to imprisonment for cultivating cannabis, possession of equipment for the purpose of cultivating cannabis, possession of cannabis for the purposes of selling it and selling cannabis. Faisal Bin Af If was also sentenced for receiving stolen property. The appellants appealed against their sentences on the basis that they were manifestly excessive. The Court of Appeal dismissed the appeal, finding that the starting point of four and a half years imprisonment was appropriate for the totality of the offending and that the Judge had given sufficient credit for mitigating factors. The Court found that the Judge was entitled to reach an overall starting point of four and a half years imprisonment on the cannabis-related charges, reflecting the overall culpability of the offending and paying due regard to totality principles. The Court also found that the Judge was not required to reduce the sentences further to reflect the efforts that the appellants had made to rehabilitate themselves while awaiting sentence or to give greater credit for the offer of reparation.

The appeal against sentence is dismissed.

Orders